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In re Lena G.

Court of Appeals of Tennessee, Knoxville

May 26, 2017

In re LENA G.

          Assigned on Briefs January 4, 2017

         Appeal from the Juvenile Court for Washington County No. J10171 Robert G. Lincoln, Judge

         This is a termination of parental rights case involving the child, Lena G. ("the Child"), who was fifteen years of age at the conclusion of trial. On October 8, 2013, the Washington County Juvenile Court ("trial court") granted temporary legal custody of the Child to the Tennessee Department of Children's Services ("DCS"). The Child was immediately placed in foster care, where she has remained since that date. Following a hearing, the trial court entered an order on June 11, 2014, adjudicating the Child dependent and neglected in the care of the parents. On November 19, 2014, DCS filed a petition to terminate the parental rights of the Child's mother, Sherry G. ("Mother"), and her father, Teddy G. ("Father"). The trial court admitted Mother's hospital records as an exhibit during trial over her objection. Following a bench trial, the trial court terminated Mother's and Father's parental rights to the Child after determining by clear and convincing evidence that (1) the parents failed to provide a suitable home for the Child, (2) the parents failed to substantially comply with the requirements of the permanency plans, (3) the conditions that led to the removal of the Child from the parents' custody still persisted, and (4) Mother was mentally incompetent to adequately care for the Child. The trial court further found by clear and convincing evidence that termination of Mother's and Father's parental rights was in the best interest of the Child. Both Mother and Father have appealed. Having determined that the Child had not been removed from the parents' home for six months by court order when the petition to terminate parental rights was filed, we reverse the trial court's ruling regarding the statutory ground of persistence of conditions as to both parents. We conclude that the trial court erred in admitting Mother's hospital records but determine this error to be harmless. We affirm the trial court's judgment in all other respects, including the termination of Mother's and Father's parental rights to the Child.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part, Reversed in Part; Case Remanded

          Joseph O. McAfee, Greeneville, Tennessee, for the appellant, Teddy G.

          Robert Black, Kingsport, Tennessee, for the appellant, Sherry G.

          Herbert H. Slatery, III, Attorney General and Reporter, and Brian A. Pierce, Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

          Rachel Ratliff, Johnson City, Tennessee, Guardian Ad Litem. Michelle Caggiano, Johnson City, Tennessee, Attorney Ad Litem.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which Richard H. Dinkins, J., and J. Steven Stafford, P.J., W.S., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         I. Factual and Procedural Background

         The Child was previously removed from the parents' custody in January 2011 after DCS filed a petition alleging that the Child was dependent and neglected. In the prior DCS case, Mother underwent a psychological assessment in May 2011 with Dr. Willard Sims; the results of which were admitted as an exhibit at trial. That assessment, inter alia, provided:

[Mother] has a closed case at Watauga Behavioral Health Services. Her last diagnoses include Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, Personality Disorder Not Otherwise Specified, and [Intellectual Disability].[1] She was seen by Richard Kirk, LCSW of the Mobile Crisis Response Team on 05/30/96 and was referred for outpatient treatment. She was seen by Kathy Henley, M.Ed. of the Mobile Crisis Response Team on 04/26/03 due to an assault by her husband. She was diagnosed with Mood Disorder Not Otherwise Specified and Partner-Relational Problem. She was referred for outpatient therapy. She was seen by James Sapp, M.Ed. of the Mobile Crisis Response Team on 11/24/03 due to an anxiety attack and having made scratches to the back of her left wrist. She was diagnosed with Anxiety Disorder Not Otherwise Specified and Depressive Disorder Not Otherwise Specified. A safety plan was able to be developed and she was referred for outpatient treatment. She denied any history of inpatient mental health treatment or any family history of mental illness.
* * *
CLINICAL SUMMARY AND RECOMMENDATIONS:
[Mother] is a 46-year-old Caucasian separated female from Johnson City, Tennessee who was referred for a psychological evaluation by Melissa Brown of the Department of Children's Services. She displayed an anxious mood and affect with sufficient levels of concentration and attention. She appeared to be a credible historian and results of this assessment appear to be valid. On the WAIS-IV, [Mother] obtained a Full Scale IQ of 55 which falls within the Extremely Low Range of intellectual functioning. She has a diagnostic history of Mild [Intellectual Disability] and has experienced difficulties with communication skills and functional academic skills. Attempts to administer the Personality Assessment Inventory to [Mother] were unsuccessful. [Mother] reported symptoms of anxiety. She is currently in a custody dispute related to her daughter.
Based on the information obtained in this evaluation, the following recommendations are being made:
1. [Mother] would benefit from individual therapy to focus on symptoms of anxiety. If these symptoms persist or intensify, she would benefit from a psychiatric consultation.
2. In case of consideration of family reunification, [Mother] would benefit from intensive family therapy to focus on co-parenting issues, family rules and consequences, family communication processes, and on age-appropriate parenting techniques.
3. In case of consideration of family reunification, [Mother] would benefit from successful completion of a DCS-approved parenting course to focus on age-appropriate parenting skills.
4. In case of consideration of family reunification, [Mother] would benefit from some type of in-home service to monitor her behavior and her home environment, to insure compliance with recommendations, and to reinforce therapeutic interventions.

(Emphasis in original.) The trial court ultimately returned custody of the Child to Father upon finding that DCS failed to present clear and convincing evidence that the Child was dependent and neglected in Father's care. The trial court also ordered that Mother was to have supervised visitation with the Child and that the paternal grandfather would have no contact with the Child.

         The trial court again removed the Child from Father's custody in April 2012 but did not find clear and convincing evidence that the Child was dependent and neglected in its subsequent order. The court subsequently returned the Child to the legal and physical custody of Father. The court ordered that Father could supervise Mother's visitation with the Child and that alcoholic beverages should not be on the premises where the Child resided.

         On October 8, 2013, the trial court entered an emergency order removing the Child from the parents' home where both Mother and Father were living with the Child. In the removal order, the trial court found that "it was reasonable to make no effort to maintain the child in the home due to the circumstances of the family and the child." Following an adjudicatory hearing conducted on May 29, 2014, the trial court entered an order finding the Child to be dependent and neglected on June 11, 2014. The trial court found by clear and convincing evidence that the Child was dependent and neglected due to concerns resulting from Mother's ongoing mental health issues; Father's substance abuse issues; the parents' failure to acknowledge and protect the Child from the grandfather, whom the Child alleged sexually abused her; and the parents' failure to meet the Child's needs. Although it is undisputed that both parents were residing in the home, the Child was in the legal custody of Father at the time of removal.

         DCS filed a petition to terminate the parents' parental rights to the Child on November 19, 2014. The trial court conducted a bench trial spanning the course of four days on October 12, 2015; November 6, 2015; January 25, 2016; and March 4, 2016. Jacki McCartt, the DCS Family Services Worker, testified regarding the efforts DCS made to assist Mother and Father in providing a suitable home for the Child from October 8, 2013, through February 8, 2014. According to Ms. McCartt, DCS held an initial Child and Family Team Meeting ("CFTM") to determine whether there would be an appropriate family placement for the Child, but no suitable family placement could be located. Ms. McCartt explained that DCS representatives discussed with the parents at that CFTM several concerns, including physical abuse, domestic violence, substance abuse, and the family's history with DCS. Subsequently, DCS placed the Child into a level-three foster home, where she received weekly counseling therapy sessions and case management with Omni Visions no less than three times per week. According to Ms. McCartt, a permanency plan was developed in November 2013; however, this plan was never ratified by the trial court.[2]

         Mother and Father resided together throughout the pendency of this case. According to Ms. McCartt, during the four months following the Child's removal from the parents' home, although DCS attempted to place services in the home to assist the parents with completing their required assessments, Father refused such in-home services. While services were also offered to Mother during that period separate from those offered to Father, Mother did not utilize the services. Father, however, did cooperate with the Child's therapy during that time period. Ms. McCartt related that the issues leading to removal were still ongoing during the four months following the Child's removal from the home and that she was unable to recommend unsupervised visitation for the parents during that time. On several occasions during the pendency of the case, Father indicated to Ms. McCartt that Mother was hospitalized at Woodridge Psychiatric Hospital ("Woodridge"). According to Ms. McCartt, Mother continued to experience ongoing mental health problems and had been hospitalized in Woodridge in April and August prior to trial.

         DCS developed a permanency plan for the family on June 12, 2014, with dual goals of "Return to Parent" and "Adoption" and a target date for those goals of December 31, 2014. The permanency plan required the parents to complete a parenting assessment and follow all recommendations from such assessment; cooperate with in-home services and all recommendations they may provide; ensure the Child had no contact with the paternal grandfather; participate "actively, openly, and honestly" in family therapy and the Child's therapy upon the request of the therapist; develop communication skills during family therapy; and engage in visitations with the Child. Additionally, Father was to complete an alcohol and drug assessment, follow all recommendations from such assessment, complete a psychological assessment, and follow all recommendations from that assessment. The trial court ratified this permanency plan on June 30, 2014, entering an order reflecting the ratification on July 11, 2014. In its order, the court found that "the tasks in the Permanency Plan are reasonable and related to achieving permanency for this child and towards remedying the reasons that the child requires foster care." As part of the June 2014 permanency plan, Mother was also to complete a psychological assessment and follow the recommendations therefrom; however, Mother objected to this requirement in court. The trial court ordered that the requirement for Mother to participate in a psychological assessment and follow all recommendations be stricken from the plan, but Mother was ordered to continue in case management with Frontier Health.

         Following ratification of the June 2014 permanency plan, Mother underwent a parenting assessment, while Father underwent a parenting assessment, alcohol and drug assessment, and psychological assessment. Father's alcohol and drug assessment conducted by Robert C. Perry, MMHC, with Families Free provided, inter alia:

[Father] presents with a very defiant attitude and is easily offended. He appears to be very uncomfortable around strangers and has a difficult time expressing and/or defining his emotions. According to [Father], his drinking at one time was significant and it is this tester[']s belief that episodes of binge drinking today is very likely significant though he did not score as alcohol dependent at this time. It is this tester's opinion that it will be very difficult for [Father] to accept any type of traditional A&D counseling and since his cognitive function is unknown to this tester, I can only presume that his ability to comprehend A&D psycho-education materials would be limited. Peer counseling and AA is likely to be the best fit for [Father].

         Father's psychological assessment recommendations included:

         Based on the information obtained in this evaluation, the following recommendations are being made:

1. [Father] would benefit from individual therapy and alcohol and drug treatment. He would benefit from therapy which addresses any symptoms of anxiety. If these symptoms persist or intensify, he would benefit from a psychiatric consultation. He would benefit from therapy which addresses his pattern of substance use and relapse prevention. He would benefit from the administration of random urine drug screens.
2. [Father] would benefit from family therapy together with all princip[als] involved to focus on co-parenting issues as well as on the impact of alcohol and drug use in the home.
3. [Father] would benefit from successful completion of a DCS approved parent education course to focus on age-appropriate parenting techniques.
4. In case of consideration of family reunification, [Father] would benefit from some type of in-home service to monitor his behavior in his home environment, to insure compliance with recommendations, and to reinforce therapeutic interventions.

         The report of the parenting assessment for both Mother and Father stated in relevant part as follows:

● Both [Father] and [Mother] appear to be challenged to meet the parenting demands of their daughter. It should be noted that testing revealed cognitive limitations and challenges in their ability to process both auditory and visual information. This reality will need to be considered as those who work with [Father] and [Mother] plan and help them to parent their child. INFORMATION AND GUIDANCE will need to be presented in brief, incremental components with modeled examples of appropriate parenting, along with opportunities for each parent to demonstrate understanding and competence.
● INTENSIVE PARENTING EDUCATION which includes appropriate developmental expectations, the importance of providing a nurturing and supportive environment for [their] child, and being emotionally available for [the Child], is recommended. Alternatives to corporal punishment as disciplinary practice may be included, with strategies specific to the needs and motivation of a teen.
● FAMILY COUNSELING, to help guide these parents to establish a parental role with their daughter and to support both parents and child to create a respectful and supportive relationship within the family dynamic, is advised.

         As to Father, his parenting assessment also stated:

[Father] has established himself as hostile toward interventions. Such perspective in concert with cognitive limitations suggests a high likelihood that he may lack the ability to gain motivation and investment in the well-being of his child.

         Additionally, Mother's parenting assessment explained:

If [the Child] is experiencing school issues similar to those her mother could not resolve herself, the likelihood, after thirteen DCS referrals, of [Mother] being able to parent and provide support for [the Child] to be successful in school attendance, is questionable. [Families Free services] to address the issues that led to custody, as well as wrap around services and educational support that will support the child to be capable/willing to self-monitor to attend school, are recommended.

         On January 6, 2015, DCS developed an updated permanency plan for the parents, which included essentially the same tasks for the parents to complete as the previous plan. The new plan, however, incorporated the recommendations from the parents' completed assessments and provided a target date of June 30, 2015. As recommended by the parenting assessments, the permanency plan required the parents to participate in intensive parenting education, cooperate with in-home services, and participate in family therapy "to establish a parental role with [the Child]" and launch a "respectful and supportive relationship within the family dynamic." Regarding the intensive parenting education, the parents were to "demonstrate participation and understanding of concepts, " "cooperate with the service provider and program requirements until successfully completed, " and demonstrate during visits their "ability to utilize parenting skills learned."

         The updated permanency plan also required Mother and Father to allow DCS and the guardian ad litem to visit the home during the pendency of the case in order to monitor "safety issues" and the "appropriateness of the environment." Additionally, Father was to participate in individual therapy as recommended by his psychological assessment and to attend weekly Alcoholics Anonymous ("AA") meetings as recommended by his alcohol and drug assessment. The trial court ratified this permanency plan on January 12, 2015, and entered an order reflecting the ratification on January 27, 2015. In its order, the court found that "the tasks in the Permanency Plan are reasonable and related to achieving permanency for this child and towards remedying the reasons that the child requires foster care."

         Amanda Shipley was the Child's case manager with Omni Visions from January 2014 to December 2014. Ms. Shipley testified that as case manager, she saw the Child weekly and facilitated visits between the Child and the parents. Most visits occurred in the family home. Ms. Shipley also attended the Child's therapy appointments. The parents agreed to attend the Child's therapy sessions twice a month; however, according to Ms. Shipley, "that only happened a few times." Following a court hearing in February 2014, Father informed Ms. Shipley that he would not attend therapy again. Thereafter, the parents stopped attending family therapy for approximately six or seven months. After that period, according to Ms. Shipley, they attended "just a few more" while she was assigned to the case. During one visit, Ms. Shipley overheard Father instructing the Child not to talk or cooperate with DCS. Ms. Shipley explained that there were numerous times when Mother could not attend visits because she was hospitalized. She also indicated that Mother hardly spoke or interacted with the Child during the visits Mother did attend.

         Ms. Shipley testified regarding two occasions when she had to cancel the visits between the Child and the parents. In April 2014, a cancellation occurred upon Ms. Shipley's and the Child's arrival because Father appeared intoxicated. When Ms. Shipley ended the visit, Father began cursing and was gesturing rudely to her and the Child as they drove away. Father subsequently left voice mail messages for Ms. Shipley wherein he admitted that he had been "drinking a little bit today." According to Ms. Shipley, the Child cried during the entire forty-five-minute drive back to Bristol following that visit. Additionally, Ms. Shipley had to cancel a visit in May 2014 due to Father's "aggressive" behavior. Father appeared to be angry with the Child, and when Father questioned the Child about a statement she had made in court the previous day, he yelled at her and said, "[f]ine then, you can just stay in foster care." Father also was using curse words and "flipped [them] off."

         At the time of trial, Kerri Rogers was the Child's case manager with Omni Visions. She had replaced Ms. Shipley as the Child's case manager in December 2014. At trial, Ms. Rogers explained having knowledge of at least five or more instances when Mother was hospitalized at Woodridge. Ms. Rogers reported that there were visits with the Child at the parents' home when Mother slept in the recliner during the entire visit. Even when Mother was awake, she was not interactive with the Child. Ms. Rogers reportedly observed Mother on multiple occasions speaking to people in the home or under the porch who were not present.

         Ms. Rogers further testified that Father became angry on one occasion, throwing a basketball in her direction. On another occasion, she observed Father instructing the Child not to take her court-ordered medication. During a more recent visit in September 2015, Father had appeared as though he were intoxicated. Ms. Rogers described Father as sweating, slurring his words, and talking loudly. Mother informed Ms. Rogers that Father had been drinking. Ms. Rogers indicated that she had never felt comfortable recommending to DCS that the parents have unsupervised visitation with the Child.

         Dr. Helen Lane testified as an expert in the field of child development and parenting assessments. She performed Mother's and Father's respective parenting assessments. During Father's assessment, he described himself as "[h]ot tempered sometimes when people keeps on messing with me." Father also reported a history of driving under the influence charges, but stated that he had not confronted as many legal issues since the Child's birth. In her parenting assessment, Dr. Lane concluded that Father was "at high risk to engage in inappropriate parenting practices" and that there is a "high likelihood that he may lack the ability to gain motivation and investment in the wellbeing of his child." Dr. Lane explained that Father's results from testing placed him within the "moderately mentally challenged range." Furthermore, Father tended to minimize the circumstances and stressors surrounding his family's circumstances, listing family strengths that Dr. Lane, as assessor, did not observe.

         As to Mother, Dr. Lane expressed concern that she appeared not to be invested in the Child. According to Dr. Lane, Mother did not display a warmth or nurturing behavior toward the Child and seemed disconnected during the visit. Mother's results from testing during her parenting assessment placed her in the "moderately mentally challenged range of cognitive functioning." Mother informed Dr. Lane that she had admitted herself to Woodridge about two or three times that year. Dr. Lane also took note that Mother was very self-focused despite the Child's absence from the home, opining that Mother might be unable to adequately parent the Child due to her lack of concern for the Child.

         Dr. Lane articulated additional concern regarding the lack of behavioral guidelines provided by the parents and her observation that the Child "seemed to be more in control than anyone in that home." According to Dr. Lane, if the Child were left in the environment of the parents' home, it was unlikely that Mother would be able to bring the Child into "independent and sustaining adulthood." Dr. Lane maintained that the parents' home would not provide a "good, healthy situation" for the Child, and if the parents did not complete the recommendations from the parenting assessments, the home would be unsafe for the Child.

         Lisa Tipton, the executive director and custodian of records for Families Free, testified that the agency provided intensive parenting education to the parents. Certain Families Free records were admitted as an exhibit at trial. Those records reflect the visits to the family home and telephone conversations between the case manager and the parents. On January 14, 2015, the case manager visited Mother at Woodridge, when Mother reported that she was seeing and hearing "bad men" again. Families Free attempted to schedule a session on January 14, 2015, but Father did not answer. According to Ms. Tipton, a session scheduled for January 20, 2015 was cancelled by Father. On January 21, 2015, the Families Free case manager travelled to the parents' home for a scheduled session, but no one was home. Subsequently, Father called and cancelled the session scheduled for January 26, 2015.

         Families Free records further established that during a case manager's visit with Mother at Woodridge on January 28, 2015, Mother reported that she had begun hearing and seeing people again and that Father had stopped providing medication to her because it was not helping. On the same day, when a Families Free case manager made a visit to the home, Father was present. Father became angry when the case manager arrived. According to Ms. Tipton, Father had been served with the petition to terminate parental rights earlier that day. Father made statements to the Families Free case manager declaring that he would blow up the DCS building, kill the DCS family services worker, blow up the entire courthouse, and kill the judge. According to Ms. Tipton, the records reflected that as of January 28, 2015, "due to [Father's] constant angry outbursts, [Families Free had] never been able to get into any of the parenting education curriculum." Thereafter, Families Free services ended and were not reauthorized to begin again until July 2015.

         A Families Free case manager met with Father on June 21, 2015, for an initial appointment after services were reauthorized. While completing paperwork, Father reported that Mother was in Woodridge. Father also indicated that he had a drinking problem and was attending AA meetings once a week. On July 27, 2015, Father contacted the case manager to cancel a scheduled parenting education session; the visit was rescheduled for July 31, 2015. Father, however, called and again cancelled the scheduled parenting education session indicating he "needed to pay his light bill" and would not be home. On August 24, 2015, the case manager visited the parents' home and attempted to develop a service plan with the parents. Father appeared "resistant to agreeing with any service plan goals" at that time. During that visit, the case manager noted that Mother's "verbal communication and acknowledgment of the situation was very limited." On August 31, 2015, the case manager again visited the parents' home, observing Mother's agitation demonstrated by her talking, yelling, and apparent responses to someone the case manager did not see. Mother subsequently began hitting the couch. Father indicated to the case manager that Mother "gets like this for a few days" before needing to be committed to Woodridge. Subsequently, the case manager met with Father at the family home regarding the first parenting education curriculum session. The case manager reported that Father was "friendly and open" during that session.

         Father cancelled a subsequent parenting education session scheduled for October 8, 2015, explaining that "he was heading to the hospital to see [Mother]" and would not be home. Father did meet with the case manager on October 22, 2015. According to agency records, "Father indicated that [Mother] had gotten a prescription the previous week for a nebulizer, however, he had been unable to obtain the nebulizer for her, which resulted in her being hospitalized again." The case manager's notes further state:

[Father] was engaged with [case manager], but remains hostile against DCS and "the state" and feels like he is being targeted. He has very little self-awareness of the impact his actions, including his alcoholism and [Mother's] deteriorating mental and physical health[, ] have on [the Child]. His hostile attitude and resistance to change, in addition to his limited cognitive functioning, present difficulties in [Father's] learning and implementing new parenting techniques and approaches.

         On October 27, 2015, Father again cancelled a parenting education session and indicated that Mother was hospitalized. The parenting education session was rescheduled for the next day, which Father later cancelled by voicemail. The case manager noted that Father's speech was "slurred on the voice mail." Father subsequently cancelled a session for October 29, 2015, by reason of his claimed "strep throat." The case manager again noted that Father's speech appeared to be slurred. Father informed her he had not been drinking and blamed the slurred speech on his throat condition. The records also demonstrate that Father notified the case manager that he would not meet on October 30, 2015, "because he had to pay his bills."

         Ms. Tipton, also testifying at trial as an expert in the field of social work, explained that the majority of Families Free's efforts with Father and Mother were expended by attempting to schedule parenting education sessions and explaining to the parents reasons for the services and why DCS had secured individuals to enter their home for the services. Although Mother and Father were offered thirty-two sessions for parenting education, twenty-one of those sessions were cancelled. The records also indicate that Mother was hospitalized during several of those offered sessions. Explaining that the parents were not able to demonstrate the skills that Families Free hoped to develop, Ms. Tipton held concerns should the Child be returned to the custody of the parents. Her concerns were primarily due to the financial instability in the home, the parents' inability to properly parent the Child, and the safety of the family members. According to Ms. Tipton, the parents would be unable to safely parent the Child in the foreseeable future because of mental health issues, relational challenges, and lack of commitment to services offered to them.

         As explained by Ms. McCartt, the parents had not completed the requirements of their permanency plans to an extent that would permit her to recommend that the parents have unsupervised visitation with the Child or to allow the Child to return to their custody. Although Father had completed his mental health intake with Frontier Health, he did not continue to work with Frontier Health after his intake appointments. Father had failed to accept or work with in-home services, and although he allowed services to enter his home, he did not cooperate with those services. Father attended an AA meeting at least once a month but not once a week as recommended by his assessment. Ms. McCartt related several instances of Father's poor conduct. Specifically, he had yelled at her, made threats of physical harm, and left voice mails cursing her. Moreover, Father had called the DCS attorney inappropriate names and sounded inebriated during various voice mail messages.

         Ms. McCartt elucidated her apprehension that the parents had not acknowledged a concern for the Child while in the company of the paternal grandfather, who had been accused of sexually molesting the Child. Although the parents had complied with the no-contact order regarding the grandfather, it was undisputed that he lived on the same street as the parents and served as their primary source of transportation.

         As indicated by Ms. McCartt, while the Child had been residing and doing well in her current foster home for more than a year, improvements in her behavior had been observed. Meanwhile, visitation with Mother had ceased, and visitation with Father had been restricted to a therapeutic setting. A motion to suspend Mother's visitation, filed by the guardian ad litem and attorney ad litem on behalf of the Child, was pending at the time of the termination hearing. An interim order had been entered prohibiting contact between Mother and the Child pending a hearing on the merits.

         As the Child's therapist in both individual and family therapy, Theresa Fletcher described the Child to be in a "condition of suffering" when she was removed from the parents' home. The Child struggled with self-care, could not verbalize her emotions, perceived herself as an adult, maintained poor social skills, had suffered the trauma of alleged sexual abuse, and was depressed. Her symptoms were consistent with Post Traumatic Stress Disorder. Throughout the course of her treatment, the Child met with Ms. Fletcher weekly and, as of November 2015, had met with Ms. Fletcher seventy-six times since she had been in DCS custody. Ms. Fletcher discussed the improvements she had observed while the Child attended therapy. These included the Child's ability to better process and verbalize her thoughts and feelings, becoming more confident, and improving her social skills.

         Although Ms. Fletcher recognized that the Child loved her parents, she expressed concern regarding whether the Child's needs were being met due to the dysfunction of the family. The home environment was described as a "clear role reversal" between the Child and the parents. Specifically, when Mother was present, the Child was the caregiver. Although a bond existed between the Child and Mother, Ms. Fletcher opined that Mother did not appear to have the ability to properly parent the Child. Ms. Fletcher also reasoned that Mother's capacity to parent was unlikely to be improved due to Mother's significant deterioration over the year prior to trial, including Mother's observed speaking to persons and seeing things not present.

         Ms. Fletcher further opined that the resolution of issues between the Child and her parents was limited by Father's lack of sobriety, Mother's mental health, the parents' inability to resolve conflicts effectively, and Father's lack of anger management. Ms. Fletcher would not support the Child's return to the parents' home at that time, indicating that placing the Child back into the parents' environment would cause the Child to "erode." Although having concerns about severing the contact between the parents and the Child, Ms. Fletcher believed the Child's welfare would be enhanced by her remaining in foster care.

         At trial, Father submitted photographs of himself and the Child to demonstrate their mutual bond. The photographs also depicted the Child's bedroom and food existing in his home. Regarding the therapeutic visits with the Child and Ms. Fletcher, Father stated that he enjoyed the visits, believing the Child enjoyed them as well.

         Admitting that a visit with the Child was cancelled by reason of his alcohol consumption, Father also acknowledged that he had consumed alcohol and was upset when he left a voice mail message for his case manager. Father claimed that he was in such condition because he was "tired of being harassed by The State." According to Father, he had addressed the situation in an effort to seek the Child's return. With reference to his demeanor, Father further testified that although he had thrown a basketball out of frustration during one visit, he in fact was aiming at the house and not Ms. Rogers.

         By Father's account, the AA meetings he had been attending for approximately three months were beneficial. Although he had attempted to attend AA meetings every week, he was not always successful. Father submitted three documents reflecting the AA meetings he did attend. Despite recognizing that AA was a twelve-step program, Father was unable to identify the first step of the program. Furthermore, although he had not obtained a sponsor in the program, he insisted that he had not consumed alcohol in six months.

         According to Father, Mother and he intended to continue to reside together. While Father observed Mother speaking to nonexistent people, he blamed Mother's medication for this behavior. Father conceded that Mother would be unable to care for the Child by herself if he was not present. Additionally, although Father had not allowed the paternal grandfather to have contact with the Child, he did not believe the grandfather had sexually assaulted her.

         The Child's testimony during trial focused on various issues. She suggested that her relationship with Father was strong and that the therapy sessions were going well. Indicating her love for Mother and a desire to continue seeing her, the Child expressed worry concerning her parents and their well-being. According to the Child, although her grades were "decent" when she resided with her parents, her current performance in school was excellent. The Child described her foster parents as "good to [her]."

         As additional evidence, DCS subpoenaed for trial Mother's hospital records from Woodridge. Mother objected to their admission into evidence. The trial court ultimately admitted Mother's hospital records as a trial exhibit.[3]

         Independent of the Woodridge hospital records, Mother's and Father's respective medical records from Frontier Health also were admitted into evidence. Neither parent objected to the admission of the Frontier Health records. As a recommendation of his psychological assessment, Father was to participate in individual therapy. Father's Frontier Health records reflect that he appeared for an intake and initial therapy session on March 10 and 12, 2015, and appeared to be frustrated. Reporting to a representative of Frontier Health that he was only required to attend the initial intake appointment, Father declined further treatment.

         Mother's Frontier Health records evince a medical history since 2003. Mother was reported as "no show" for her aftercare appointments with Watauga Behavioral Health Services ("WBHS"), a division of Frontier Health, on November 26, 2013; January 7, 2014; and April 1, 2014. On October 8, 2014, Mother was seen by the Frontier Health Mobile Crisis Response Team. Mother stated at the time that she was depressed and held thoughts about killing her husband. Mother also reported not having taken some of her medication in approximately two months. Consequently, she was referred to the respective Crisis Stabilization Unit ("CSU"). While in the CSU, Mother expressed her willingness to participate in case management services.

         On October 9, 2014, Mother participated in a group discussion session. The group facilitator's notes provided that Mother "will continue to work on her goals regarding reduction of symptoms of auditory hallucinations, adjustment difficulties, and mild [intellectual disability], with medication stabilization and compliance, therapy to help increase healthy coping skills, and utilization of healthy coping skills more often to improve the moment, and overall quality of life." On October 10, 2014, Mother attended the treatment group and was alert and engaged during the session. On October 11, 2014, Mother participated in a group therapy session and was discharged from the CSU, with planned aftercare to attend scheduled follow-up appointments at WBHS. On October 21, 2014, Mother failed to appear for her appointment with WBHS.

         On October 27, 2014, the case manager with WBHS met with Mother at Woodridge. Mother reported an admission to Woodridge after experiencing increased anxiety and depression. She agreed to participate in case management services at that time. WBHS was to be contacted by Woodridge staff for an appointment upon Mother's discharge. On November 11, 2014, Mother failed to appear for her appointment with WBHS. Subsequently on November 26, 2014, the WBHS case manager again met with Mother at Woodridge. Mother reported having been admitted to the hospital after experiencing suicidal ideations and increasing depression. At that time, Mother agreed to participate in case management services with WBHS. Woodridge staff was to contact the case manager for an appointment upon Mother's discharge. On December 9, 2014, Mother again failed to appear for her WBHS appointment. During a December 23, 2014 meeting with the WBHS case manager at Woodridge, Mother reported having entered Woodridge after experiencing hallucinations of animals and people. Mother again agreed to participate in case management services with WBHS. Woodridge staff were to schedule aftercare appointments upon Mother's discharge, but on December 23, 2014, and January 6, 2015, Mother missed her appointments with WBHS.

         When the WBHS case manager again met with Mother at Woodridge on January 12, 2015, Mother reported a Woodridge admission after experiencing both auditory and visual hallucinations. Mother informed the case manager that "she was seeing lots of people, who all were talking, but she could not make out anything they were saying." Mother agreed to participate in case management services at WBHS. The case manager's note indicated that WBHS would be contacted by Woodridge staff for appointments upon Mother's discharge from Woodridge. On January 27, 2015, Mother again missed her appointment at WBHS.

         On February 2, 2015, when the WBHS case manager met with Mother at Woodridge, Mother stated that her hospitalization was due to the "same reason that [she was] always admitted to Woodridge for." The case manager observed Mother to be extremely agitated, with Mother complaining of both auditory and visual hallucinations. Mother again reported a willingness to participate in case management services with WBHS. The case manager's note indicated that Woodridge staff would contact WBHS to schedule appointments upon Mother's discharge. Nonetheless, on February, 10 and 17, 2015, and March 17, 2015, Mother was reported as a "no show" for her appointments. During a July 22, 2015 meeting with the WBHS case manager at Woodridge, Mother reported an admission to Woodridge following a fight with her husband concerning cigarettes. Mother again indicated a willingness to participate in case management services at WBHS.

         Following the trial, the court entered a final order on March 22, 2016, terminating Mother's and Father's parental rights to the Child. The court found by clear and convincing evidence that (1) Mother and Father had failed to provide a suitable home, (2) Mother and Father had failed to substantially comply with the requirements of the permanency plans, (3) Mother was mentally incompetent and unable to care for the Child, and (4) the conditions leading to the Child's removal from the home still persisted as to Mother and Father. The trial court further found by clear and convincing evidence that termination of Mother's and Father's parental rights was in the best interest of the Child. Mother and Father timely appealed.

         II. Issues Presented

         On appeal, Mother presents six issues, which we have restated as follows:

1. Whether the trial court erred by admitting Mother's hospital records into evidence at trial.
2. Whether the trial court erred by finding clear and convincing evidence that Mother abandoned the Child by failing to establish a suitable home.
3. Whether the trial court erred by finding clear and convincing evidence that Mother had substantially failed to comply with the statements of responsibilities in the permanency plans.
4. Whether the trial court erred by finding clear and convincing evidence that the conditions leading to the Child's removal into protective custody persisted.
5. Whether the trial court erred by finding clear and convincing evidence that Mother was mentally incapable of caring for the Child.
6. Whether the trial court erred by finding clear and convincing evidence that it was in the Child's best interest to terminate Mother's parental rights.

         Father presents four issues, which we have likewise restated as follows:

7. Whether the trial court erred by finding clear and convincing evidence that Father abandoned the Child by failing to establish a suitable home.
8. Whether the trial court erred by finding clear and convincing evidence that Father had substantially failed to comply with the statements of responsibilities in the permanency plans.
9. Whether the trial court erred by finding clear and convincing evidence that the conditions leading to the Child's removal into protective custody persisted.
10. Whether the trial court erred by finding clear and convincing evidence that it was in the Child's best interest to terminate Father's parental rights.

         III. Standard of Review

         In a termination of parental rights case, this Court has a duty to determine "whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence." In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court's findings of fact are reviewed de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524 (Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court's determinations regarding witness credibility are entitled to great weight on appeal and shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

         "Parents have a fundamental constitutional interest in the care and custody of their children under both the United States and Tennessee constitutions." Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that "this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:

The parental rights at stake are "far more precious than any property right." Santosky, 455 U.S. at 758-59. Termination of parental rights has the legal effect of reducing the parent to the role of a complete stranger and of ["]severing forever all legal rights and obligations of the parent or guardian of the child." Tenn. Code Ann. § 36-1-113(1)(1); see also Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental rights is "final and irrevocable"). In light of the interests and consequences at stake, parents are constitutionally entitled to "fundamentally fair procedures" in termination proceedings. Santosky, 455 U.S. at 754; see also Lassiter v. Dep't of Soc. Servs. of Durham Cnty, N.C. , 452 U.S. 18, 27 (1981) (discussing the due process right of parents to fundamentally fair procedures).
Among the constitutionally mandated "fundamentally fair procedures" is a heightened standard of proof-clear and convincing evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of unnecessary or erroneous governmental interference with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). "Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings." In re Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and- convincing-evidence standard ensures that the facts are established as highly probable, rather than as simply more probable than not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
* * *
In light of the heightened burden of proof in termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. "[P]ersons seeking to terminate [parental] rights must prove all the elements of their case by clear and convincing evidence, " including statutory grounds and the best interest of the child. See In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).

         IV. Mother's Woodridge Hospital Records

         As a threshold issue, Mother contends that because her Woodridge hospital records were improperly admitted into evidence during trial, the termination of her parental rights should be reversed and remanded for a new trial. Mother objected to the admission of her hospital records on the basis of Tennessee Code Annotated § 68-11-404(a) (2013). Although we conclude that the trial court erred in admitting Mother's hospital records, we determine that error to be harmless because the remaining proof supports by clear and convincing evidence the termination of Mother's parental rights.

         Tennessee Code Annotated § 68-11-404 is contained within Part 4 "Hospital Records as Evidence, " of Chapter 11, "Health Facilities and Resources, " of Title 68, "Health, Safety and Environmental Protection, " of the Tennessee Code. The Tennessee Court of Criminal Appeals has recognized that

[t]he main purpose of T.C.A. §§ 68-11-401 et seq. is to provide a procedure for a hospital, where it has no interest in the case, to respond to a subpoena duces tecum for hospital records by filing copies of the records authenticated by affidavit instead of by sending a witness to the hearing with the originals.

State v. Hutchinson, C.C.A. No. 887, 1990 WL 99386, at *1 (Tenn. Crim. App. July 19, 1990). Few appellate decisions have addressed the applicability of this statutory scheme to specific situations; however, certain sections of Part 4 have been applied by this Court in termination of parental rights proceedings. See e.g. In re C.I.J., M2006-02192-COA-R3-PT, 2007 WL 2091228, at *4-8 (Tenn. Ct. App. July 17, 2007) (examining the procedural requirements of Tennessee Code Annotated §§ 68-11-402, 403, 405).

         The hospital records at issue were subpoenaed by DCS, thereby triggering application of Tennessee Code Annotated § 68-11-401, et seq. When hospital records are subpoenaed to court, Tennessee Code Annotated §§ 68-11-402 and -405 allow for the custodian of records to deliver a copy of the records requested directly to the court with an accompanying affidavit authenticating the records, in lieu of the custodian of records appearing personally at trial. The subpoenaed hospital records should be sealed upon their arrival to the court. See Tenn. Code ...


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